Citation NR: 9708960
Decision Date: 03/20/97 Archive Date: 03/31/97
DOCKET NO. 95-03 577 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James L. Calis, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1969 to
September 1972. This matter comes to the Board of Veterans’
Appeals (Board) from a December 1993 determination of the
Department of Veterans Affairs (VA) Phoenix Regional Office
(RO) which denied service connection for a low back
disability.
REMAND
Initially, the Board has found that the appellant’s claim of
service connection for a low back disability is well grounded
pursuant to 38 U.S.C.A. § 5107(a), in that it is plausible or
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78 (1990). The veteran’s wife, who is a registered nurse,
indicated in April 1995 that on treatment by a private
physician in 1993, degenerative arthritis of the spine was
diagnosed. She further indicated that it was her opinion
that his current low back disability is related to an injury
he sustained in service. Goss v. Brown, 9 Vet.App. 109
(1996) (a nurse’s statement that the veteran’s current
problem could have been caused by in-service events was
sufficient to make his claim well grounded).
The duty to assist the veteran in obtaining and developing
available facts and evidence to support his claim includes
obtaining an adequate VA medical examination. This duty is
neither optional nor discretionary. Littke v. Derwinski, 1
Vet.App. 90 (1990). The fulfillment of the statutory duty to
assist includes conducting a thorough and contemporaneous
medical examination, one which takes into account the records
of prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet.App. 121, 124 (1991).
The record shows that the veteran has not been afforded a VA
medical examination in conjunction with his claim on appeal.
As the veteran’s wife, a registered nurse, indicated that the
veteran’s current low back disability is related to service,
it is the opinion of the Board that he should be afforded a
VA orthopedic examination to determine the nature and
severity of any current low back disability, including an
opinion as to the origins or etiology of any such disability.
In this regard, it is noted that the veteran was treated at
the Bagdad Hospital in Arizona in April 1981 for thoracic and
lumbar strain after pulling a 5-gallon bucket of material up
a ladder, twisting his low back.
Furthermore, in December 1993, in response to a second
request by the RO for the veteran’s service medical records,
the National Personnel Records Center indicated that all
available service medical records had been forwarded. The
service medical records currently in the claims folder show
treatment until January 1972. However, the veteran has
maintained that he sought treatment for his back subsequent
to that time. He indicated in his October 1993 application
for VA compensation benefits that he had been treated for a
back injury in the summer of 1972 at the “command dispensary”
in “Ansbach,” Germany. Later, in his November 1994
substantive appeal, he reported that he was treated for a
back injury in July 1972 at his unit dispensary in “Asnbach,”
Germany. He also testified in his April 1995 personal
hearing that he sought treatment for his back in July or
August 1972. The duty to assist includes obtaining treatment
records from facilities where the veteran indicated that he
was treated during service. Sheed v. Derwinski, 2
Vet.App. 255, 259 (1992). In light of the veteran’s
contentions, and as there are no records showing in-service
treatment in July or August 1972, an effort to obtain any
additional records from the specific treating facility where
the veteran claims he was treated while stationed in
“Ansbach” or “Asnbach,” Germany is necessary.
In light of the foregoing, the case is REMANDED for the
following actions:
1. The RO should obtain from the veteran
the names and addresses of all medical
care providers who treated him for his
low back disability post service. After
securing any necessary releases, the RO
should obtain copies of all VA and
private treatment records (not already of
record), for association with the claims
folder.
2. The RO should obtain from the veteran
the name of the specific facility where
he sought treatment for his back in July
1972, which he reported was in “Asnbach”
or “Ansbach,” Germany. The veteran
should assist in resolving this
discrepancy in order that the RO may
request from the appropriate facility all
available records pertaining to treatment
of the veteran’s back during 1972.
3. The veteran should then be afforded a
VA orthopedic examination to determine
the nature and etiology of his low back
disability. The claims folder should be
made available to the examiner for review
in conjunction with the examination. All
necessary testing, including X-ray
studies, should be conducted and the
results reported in detail. The examiner
should be requested to render an opinion
, based on the examination and review of
the record, as to whether it is as likely
as not that any current low back
disability is related to service. If
more than one current low back disability
is diagnosed, the examiner should render
a determination as to the origins or
etiology of each such disability.
4. Thereafter, the RO should again
review the record. If the benefit sought
on appeal remains denied, the veteran and
representative should be furnished a
supplemental statement of the case and
the opportunity to respond.
The case should then be returned to the Board for further
appellate consideration.
J. F. GOUGH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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